Perspective of a digital copyright reformer on
Sheila Copps, MP.

This is a document that is being updated as feedback is received.
This document was last updated on April 6, 2004.

Introduction

Many people are asking the question of whether Sheila Copps,
current MP for Hamilton East with the Liberal party, would make a
good member of the New Democratic Party if she is not able to receive
the Liberal nomination for the new riding1.
Sheila Copps was past Minister of Heritage and in that position I met
with her because of my involvement with copyright reform2.
I spoke with Minister Copps in person during the Ministers's Forum3
on Copyright on April 4th, 2003. To demonstrate a
different way of looking at the same problems I will contrast past
Minister Copps views on digital copyright issues with those of
another Hamilton personality, Bob Young.

To offer my impression of Minister Copps I must first offer a
little bit of background on some of the issues in copyright reform.
In recent years there has been increased citizen access to
Information and Communications Technology (ICT) ranging from
audio/video recording devices, new electronic enhanced musical
instruments, editing and communications equipment, and computer
technology controlled by software. The 1990's saw the rapid growth of
the Internet that put ever advancing communications tools in the
hands of almost every creating person that allowed them to
communicate very easily with audiences throughout the world.

While these new ICTs provided for new possibilities beyond the
imagination just a generation ago, these new tools came with their
downside. If a creator is able to take control of these tools to
create and communicate their works easily, unauthorized persons could
use the same tools to infringe the rights of these creators and
illegally communicate these works as well. The case of Napster and
the use of Peer-to-peer networks to communicate works without the
permission of their creators, often incorrectly called 'sharing',
made this issue very public.

Many people agreed that this was a problem that needed to be
looked into, and for some this aspect of advances in communications
tools seemed to be apocalyptic for creators' rights protected by
copyright. Because it was digital technologies that made these new
opportunities and issues surface, the term “digital copyright”
is used to describe the debate around how to address these changes in
copyright law.

Whenever there is a problem to be solved in law there are
different political philosophies that apply. One political philosophy
suggest that solutions to criminal activity require more policing,
stricter laws, and larger punishments. Another political philosophy
suggests we find the root causes of criminal behavior and find
community based ways to reduce this behavior without resorting to
strong policing tactics that often have unintended consequences.
There are political philosophies which favor policy which supports
big business over the interests of communities. These type of
political philosophies play out in digital copyright reform, and I
will demonstrate using “more policing” and “favor
big business” examples.

Control over Information and Communications Technologies

In its simplest form, the thinking goes like this: if private
citizens being able to control ICT allows them to infringe copyright
and illegally distribute the works of others, then the solution is to
take the control of ICT away from private citizens4.

In order to understand how this can be done you need to realize
that there are at least 3 different constituencies in copyright: the
creator who is a private citizen with creative talent, an audience
made up of private citizens, and intermediaries that exist between
the creators and their audiences. These intermediaries include many
very different entities such as non-creator copyright holders (music
labels, motion picture studios, software corporations), and
creators/owners of communications tools and media (manufacturers of
ICT tools, Internet Service Providers, Cable and satellite and other
telecommunications companies).

Since creators and audiences are private citizens, and are often
interchangeable depending on what type of work we are talking about,
there is no way to give creators control over ICT tools without
granting the same control to other private citizens. In effect what
is being proposed with this solution is to take the control of ICT
away from creators and their audiences and grant control (and thus
ownership) of these tools to intermediaries. It would not be you as a
private citizen that would own and control your VCR/camcorder,
television, or home computer, it would be these intermediaries.

A simple thought experiment can demonstrate the problem with this
solution. In 1982 in testimony to the United States House of
Representatives on why the VCR should be illegal, Jack Valenti said,
"I say to you that the VCR is to the American film producer and
the American public as the Boston strangler is to the woman home
alone"5.
If Jack Valenti, president of the Motion Picture Association of
America (MPAA), had been successful in convincing the United States
to ban the VCR (and all derivative tools such as the camcorder and
inexpensive video editing hardware/software), would the current
visual arts community exist today? I suggest that creators of these
types of works would at this point either be working for MPAA
members, likely under even more oppressive "work for hire"
situations than creators are subjected to today, or not working at
all.

Control over business models for creators

In it simplest form the thinking goes like this: assuming
audiences are going to infringe copyright then make this infringement
legal and just collect a levy that will be distributed to copyright
holders as a replacement.

This sounds like a sensible solution until you see how things work
in practice as we have experienced already in Canada with music under
the Private Copying6
regime. Under this regime the creator loses their exclusive rights to
a form of “compulsory licensing”. Where a creator is
offered material rights in their works they have the opportunity to
explore new business models, possibly even setting up more intimate
relationships with their fans. With this compulsory licensing system
they no longer have control over their material rights and have an
intermediary administered royalty payment system imposed as a
replacement.

The current system has many questions as to who receives the
royalties. Since there is no way to directly determine what music
private citizens are enjoying from this regime, proxies such as
“radio airtime” and “record sales” are used
to determine what artists receive in royalties from this system.
These are two statistics that are already highly manipulated by the
recording industry as part of their superstar system, and thus less
famous musicians – the vast majority of musicians -- will
receive nothing from this system.

There are also concerns about what would happen to other types of
works if this style of regime was imposed on them. I have suggested
that it would decimate the computer software sector if this type of
regime were imposed on it7.

As with the question of control over ICT, this proposal favors the
interests and business models of incumbent non-creator copyright
holders over the interests of creators, creating further government
mandated artificial dependencies on these intermediaries.

Computer Software

When we talk about the control of ICT tools we are really talking
about software as what you can or can not do with an ICT tool is
governed by policy encoded in software. It is in this sense that
Lawrence Lessig8
suggested that “code is law”. What rights creators of
software are given over their works ends up affecting what rights any
other creator or citizen will have over ICT tools, so the nature of
computer software is critical to understand for digital copyright.

As with the creation of any other policy we need to ask who is in
control of the process of creating this policy. When talking about
ICT tools the choice is between the vendors of the tools and the
citizens who own and use those tools.

There are two very different ways of thinking about computer
software that can be traced back to the formation of the software
sector. Prior to the 1960's software was always bundled with hardware
as part of an integrated device. You had a device that could do word
processing, but it could not be easily reprogrammed to do other work.
Hardware was obviously manufactured, distributed and sold on a
per-unit basis and thus the bundle of hardware and software was
marketed that way.

Some time around the 1960's the software sector formed with the
separation of software from hardware. At this point two very
different camps were formed. There were those who felt that software
should be treated the same as hardware, with those in the "software
manufacturing" movement relying almost entirely on business
models and methodologies from the manufacturing sector. Software code
is kept as secret as possible and the users of the software are
legally disallowed from learning how the software works or modifying
it to put the software under the control of the user. This subset of
the software industry was very successful from the 1960's up to
today.

Another group of people noticed that software, being intangible
and naturally non-rivalrous, has very different attributes than
hardware. They felt that there was no need to arbitrarily limit
software and software business models to those from the manufacturing
sector, and think of per-unit royalty payments as simply one business
model among many.

Free/Libre and Open Source Software (FLOSS9)
is software where the user has the freedom to run, copy, distribute,
study, change and improve the software. Having this freedom also
means that the user does not have to pay an additional fee to do any
of these things. Because this software does not have a royalty fee,
the incentive for private citizens to infringe copyright is gone and
this business model ends up being a very effective means to almost
completely stop software copyright infringement10.

While many people are paid to create FLOSS, the business models
they use are not based on royalty fees. FLOSS creators come from all
sectors of our economy including the public, private, volunteer and
education sectors, and each has their own motivations and incentives
to participate. Often the financial motivation is from the customer
to save money by using modern software methodologies, rather than the
motivation from a vendor being to make money on the “sale”
of the software11.

Having all these freedoms in relation to the software also means
that the ICT under the control of that software is under the control
of the citizen. If they do not have the skills to modify the software
themselves, they can hire someone to under their direction modify it
for them – similar in concept to electing a representative to a
democratic body rather than trying to directly help create public
policy. If we think back to “code is law”, these freedoms
map almost directly onto government transparency and accountability
concepts such as “access to information” laws in
democracies, as well as having independent media to report on what is
happening in government.

Sheila Copps's response to digital copyright challenges

While the debate on copyright reform is often characterized as a
battle between copyright holders and copyright infringers, I believe
that the two problems discussed earlier suggest that the real
critical question is between creator copyright holders and
non-creator copyright holders (a subset of intermediaries).

My first personal meeting with Sheila Copps was at the Ministers
Forum on Copyright, and at this forum it became clear that Sheila
Copps favors the interests of non-creator copyright holders. She
supported laws granting further intermediary-control over ICT, going
so far as to say that my interpretation of this area of public policy
was “ludicrous” during this forum. This was the issue
that brought our community out to the 2001 copyright reform
consultations12,
and it was an issue that Sheila quickly shut down during that forum.

Where it comes to the question of business models, she seems to
consider the Private Copying regime which implements this replacement
of creators' rights with a right of remuneration to be a personal
success story.

When I tried to talk to her about about these issues she seemed
entirely unaware of and uninterested in learning about Internet
business models that skip intermediaries and give creators more
control over the exploitation of their creative rights. She was
unaware of FLOSS and/or "commons-based peer production"13.
She seems to equate the special interests of the copyright-holding
intermediaries with protecting the rights of creators, and sees the
Internet only in the context of a threat to incumbent intermediaries
rather than as a great opportunity for creator communities.

Robert Young's response to digital copyright challenges

Excited about the Internet and emerging co-dependent FLOSS in the
early 1990's, Robert co-founded Red Hat14
which helps advance and distributes a FLOSS operating system as well
as many FLOSS applications. Documentation on their website suggest
that they are a leader in Open Source software and that “what
began as a better way to build software--openness, transparency,
collaboration--soon shifted the balance of power in an entire
industry”15.

Red Hat became a very successful company and at the IPO for its
stock became the eighth-biggest gain for a U.S. stock in the first
day of trading16.
The ongoing success of Red Hat and other similar companies is proof
that it is possible to make money in the software market without
charging royalty payments, and without having exclusive control or
copyright over the software which a company can market and support.

Understanding the business models that were at the heart of his
success, he started to look at ways to help other creators in the way
that Red Hat was helping software creators. He founded the Center for
the Public Domain17
in 199918.
In 2002 he founded Lulu.com19.
Lulu is a marketplace for books, images, music and other creative
works designed for creators to market their own works directly and
skip many of the traditional intermediaries. Creators are encouraged
to retain their own copyright on their works, rather than the
tradition where the material rights for a work are signed away as
part of the deal with the non-creator copyright holding intermediary.

In October 2003 Robert decided make use of his entrepreneurial
success and give back to the hometown where he grew up by buying the
Hamilton Tigercats20
and promoting Hamilton.

Conclusion

Where Sheila Copps often claims that she tries to speak for
workers and is not beholden to large corporate interests, her actions
on copyright reform suggest otherwise. Her response has primarily
supported incumbent intermediary big business interests, largely
ignoring the longer-term interests of creators and other citizens.
When we look back on the history of copyright reform in Canada we may
see the transition of the Liberal government that removed Sheila
Copps as Heritage Minister as being a very important day in the
protection of creators' rights.

Entrepreneur Robert Young has been a great success challenging the
incumbent big business interests in a way that protects the rights of
creators to determine their own destiny in a free market separate
from the incumbent intermediaries.

In the new Hamilton riding people will be going to the polls soon.
One of the candidates may be Sheila Copps, a candidate that electors
should consider carefully. Had Sheila's policies on copyright been in
place ten years ago, Robert Young's Internet business model would
have been impossible. In Sheila's world, the Hamilton Tiger Cats
could have become just a fading memory.

Footnotes

2My
most recent submission to the government on Copyright Reform can be
read at: http://www.flora.ca/copyright2003/
(accessed January 31, 2004) This document includes a table at the
end which references other submission and activities in this area of
policy since the summer of 2001.

4For
those following the digital copyright reform process, the most
recent incarnation of this problem policy is known as “Legal
protection for Technological Protection Measures” and is an
extreme interpretation of part of some WIPO treaties which Canada
has signed onto. In the United States their implementation of this
policy is known as the nasty part of the Digital Millennium
Copyright Act http://www.eff.org/IP/DMCA/
(Accessed Feb 10, 2004)

5Hearings
before the subcommittee on courts, civil liberties, and the
administration of justice of the House of Representatives,
ninety-seventh congress, second session, onH.R. 4783, H.R. 4794
H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705HOME RECORDING OF
COPYRIGHTED WORKSAPRIL 12, 13, 14, JUNE 24, AUGUST 11, SEPTEMBER
22 AND 23, 1982http://cryptome.org/hrcw-hear.htm
(accessed January 31, 2004)

7I
wrote about the private copying regime in “Content industries
on slippery slope with demand for blank media levy” which was
published in the Feb 2, 2003 edition of Canadian New Media.
http://www.flora.ca/cnm20030207.shtml
(accessed February 2, 2004)

8More
information on Lawrence Lessig and his books can be found at
http://lessig.org (accessed Feb 10,
2004)

11There
is a growing amount of analysis of software business models looking
at demand-side analysis rather than supply-side vendor-centered
analysis. Doc Searls, Senior Editor of Linux Journal, often writes
about the concept of “the demand-side supplying itself”
in his SuitWatch newsletter http://www.ssc.com/pipermail/suitwatch/
(accessed February 10, 2004). See his report on Macworld, "New
Economy Hack: Turning Consumers Into Producers":
http://linuxjournal.com/article.php?sid=7345

Canadians wanting to learn more may
want to participate in the iCommons Canada Project which is an
initiative of the Canadian Internet Policy and Public Interest
Clinic (CIPPIC) http://www.cippic.ca/icommons-canada
(Accessed Feb 11, 2004). There is also a website being set up to run
information campaigns aimed at politicians at
http://www.peerproduction.org/
(Accessed Feb 11, 2004)